Bowly's Lessee v. Lammot

WL,by his will* devised as follows: ®VX give and bequeath to inydear wife A L, for and during her natural life, my tract of land and plantation called C, (save and except the rope walkp’ “Item, 1 give and bequeath to my dear son Gé L, hi* heirs and assigns, my tract of land called C; but in case my said son should 4 die before he attains of legal age, and without issue, then I leave and bequeath the said tract of land called C, to my dear wife A L, or her assigns, to be at her own will and disposal, ns it originally was save and except five acres to be laid off&c. “and that said five acres* together' with ’thé rope walk* X give and bequeath to vty tteti^.-neph'evf'D £, his heirs and assigns And it is further my intention, that if my dear wife should the "before my dear son G-, so that my estate be vested in him, and he should afterwards die before he attains :legal age, and without lawful issue, then,” &c -rBéld) that the devise . of the rope walk to D B was an immediate, and not a contingent devise. ?! The intention of the testator is to 'be collected from the words of the will, and the whole of the-will xs to be considered and compared Such construction must be made as will gratitV every part of the will, if it can be done consistent with the general intent. The rope-walk, and the five acre», mu,st be considered as the same.

Appeal from Baltimore county court. Ejectment, for a. tract of land called Chatsyiorth, lying ip. Baltimore county. Defence, was taken on warrant, and plots wore made. At the trial it was admitted, by the parti.es that William Lux, deceased, was seized ip ' fee simple, on the 1st of January 1773, of the tract ot land callee] Chatsworlh, granted to him by patent, containing, 95,0. acres; and being so seized, made his will on the 5th of May 1773, whereby he devised, among other things as follows: “Am.I give and bequeath to iny dear yife Jlgnes Lux, for and during her natural life., my tract of land and plantation called Chatsworth, with the dwelling-house and all the buildings* and improvements thereon, (save and except the Hope Walk.) '■’•.Item. I give, and bequeath to my dear son George. Lux, his heirs and assigns, my tract of land called Chats-worth, lying in Baltimore county, containing 950 acres; but in case, my said son should die before he attains of legal age, ami without issue, then I ieaqe and bequeath the said tract of land called Chatsworth to my dear wife dignes Lux, or her. assigns, to be at her own will and disposal as it originally was, save and except five acres, to be laid of} in a long square on the south two degrees west one hundred and tJrkJy-ons perch line, being the fifth line from the beginnings and that said five acres, together with the Hope Walk, and all the buildings and improvements ther.eon, J give and bequeath to my. dear nephew and partner, Daniel Bowly, his heirs and assigns; and it is further my will and intention, that if my said dear wife should die before my dear son George, so that my estate be vested in him, and he should afterwards die before he attains legal age, qnd’ without lawful issue, then and ip such case, I leave and bequeath all that part of my said tract of land called Chatsworth, that lies to the northward of a porth west line drawn from the, beginning treesj of the tract of land called Ilnp Hazard, to dignes Wql/eer, qnd the heirs of her body lawfully begotfep, and ip default of such issue to Charles Walker, his heirs and assigns, for ever; and all the rest and residue of the said tract c.al,led ChxtsivorUi, 1 give and bequeath to my said nephew Daniel Bowly, and his heirs and assigns, remainder over to my dear brother Darby Lux, his heirs and assigns, for ever, subjecting the, same nevertheless in either case to the payment of ¿£500 sterling to dignes. .Walker, and he.r, heirs.” William Lux. died oq the 10th of May 1778, leaving George Lux his. only son, aqd heir, at law, then of the age of twenty-one years, dignes, the wife of the testator, survived him several years, Daniel Bowly was the nephew of William Lux, and at the time of the date of the said will wqs ip partnership with him in carrying on the manufactory of rope, in a Rope-Walk situated on a part of Chatsworth, but Bowly was not at that time in any manner interested in the land called Chatsworth, nor was there any lease of due- Rope-Walk, W any articles or terms of partnership. George Lux lived many years after his arrival at the age of twenty-one years; and after the death of his mother, and while he was in the actual seisin apd possession of the land, did, on the 17th of April 1787, by deed,-convey in trust, &c, to William Russell, “all that part of Chatswortk which hath not heretofore been granted and conveyed, and whereof the fee simple remained at and before that time in the said Lux,, a part of which is now under lease to his under tenants,” &c. Russell, after the execution of the said deed, entered upon and became seized of such part of Chatswortk, as could legally pass in virtue ¿f the said deed, to and for the purposes of- the deed; am} afterwards by deed, dated the 27th of April 1789, conveyed to Harry Horsey Gough parts of Chatswortk, described by courses and distances, and containing sixteen and a quarter acres. Gough, on the 9th. of May 1801, conveyed to Lammot, (the defendant,) the parts of Chats%uorth conveyed to Govghby Russell. The five acres of land, mentioned and described in the will of William, Lux, are included within the lines of Chatswortk, and are part thereof; and they are truly located by the plaintiff on th© plots, in ffie cause, and are the same five acres of land which the plaintiff claims as his pretensions; but the Rope-Walk did not occupy or cover more than two or three acres of Chalsivor-lh. The two parcels of land, mention-, ed. apd described in the deeds from Lux to Russell, and from Russell'ta Gough,- and from Gough to the defendant, are parts of Chatswortk, and include the land for which this, ejectment is brought, and are truly located on the plots, and for which the defendant hath tafeen defence, Harby Lux, named in the will, was the testator’s eldest brother, and survived him, and is since dead, leaving issue at this time in full life and being. Upon these facts the defendant prayed the opinion of the court, and their direction to the jury, that the lessor of the plaintiff acquired pa estate in the five acres of land in the said will mentioned, competent to support this suit. Of which opinion the court, (Nicholson, Ch. J. and Hollingsworth, A. J.) were, and did so direct the jury. The plaintiff'excepted; and the .verdict and judgment being against him, he appealed to this court.